O'Connor v. Patton

• Decision Date: 05 July 1926
• Docket Number: 101
• Citation: 286 S.W. 822,171 Ark. 626
• Parties: O'CONNOR v. PATTON
• Court: Arkansas Supreme Court

286 S.W. 822

171 Ark. 626

O'CONNOR v. PATTON

No. 101

Supreme Court of Arkansas

July 5, 1926

Appeal from Ouachita Chancery Court, Second Division; A. L Hutchins, Chancellor on exchange; reversed.

Decree reversed, and cause remanded.

Smith & Little, Jones, Buck & Gibson and U. A. Gentry, for appellant.

H. E Meek and L. B. Smead and J. N. Saye, for appellee.

WOOD J. Mr. Justice HART dissents.

OPINION

WOOD, J.

A. H Patton executed two deeds dated February 25, 1924. In one of these deeds he conveyed to Dan O'Connor certain lands in Ouachita County, consisting of about 600 acres. By the other deed he conveyed to Dan O'Connor an undivided half interest in about 240 acres, all situated in Ouachita County. The consideration named in both of the above deeds was "$ 1 and other valuable considerations." This action was instituted by Ellen E. Patton in the Ouachita Chancery Court against Dan O'Connor and certain other parties named as the heirs-at-law of A. H. Patton, deceased. She alleged that A. H. Patton died in June, 1924, testate, without issue, and that she was his widow; that, on or before March 1, 1924, A. H. Patton executed the deeds above mentioned to O'Connor for the purpose of defrauding her. She alleged that her husband, A. H. Patton, had instituted a suit for divorce against her, and that, while this suit was pending, he conveyed the lands mentioned by warranty deed to O'Connor, with the understanding that O'Connor was to hold the same in trust for A. H. Patton until the divorce suit was terminated, and that O'Connor was then to reconvey the lands to A. H. Patton; that, before the divorce suit was terminated, Patton died. She alleged that she was entitled to a half interest in the lands in fee simple; that A. H. Patton, prior to his death, executed a will in which the plaintiff, Mrs. Sallie Reynolds, Louis Patton and Walter Patton are named as beneficiaries. She alleged that she elected to renounce the will and take her estate as the widow of A. H. Patton. She prayed that the deeds of Patton to O'Connor be canceled and that she be declared the owner in fee simple of an undivided half interest in the lands mentioned.

O'Connor answered, and denied that the deeds mentioned in the complaint were executed on March 21, 1924, and alleged that they bore the true date of their execution. He denied the allegations of fraud, and denied that he held the deeds in trust for Patton. He alleged that on March 21, 1924, he executed and delivered to A. H. Patton the following instrument: "That whereas, on February 25, 1923, A. H. Patton, by warranty deed, conveyed 588.21 acres of land in consideration of $ 1 and other valuable considerations to Dan O'Connor; that said lands are described in a deed now of record executed by A. H. Patton to Dan O'Connor on February the 25, 1924, and on said day the said A. H. Patton executed to Dan O'Connor a deed conveying an undivided one-half interest in 237.27 acres, in consideration of $ 1 and other valuable considerations, that said deed is now of record. And whereas, it is understood by and between the said Dan O'Connor and his wife, Anna O'Connor, and A. H. Patton, grantor in said deeds, in consideration of $ 500 and other considerations when the same is paid to the said Dan O'Connor by the said A. H. Patton, that the said land will be reconveyed to the said A. H. Patton by the said Dan O'Connor and his wife, Anna O'Connor, their heirs and assigns. (Signed) Dan O'Connor, Anna O'Connor. In witness whereof we set our hands on this 21st day of March, 1924. J. L. Diffie, notary public."

O'Connor alleged that there was no consideration for the above instrument, and in the alternative, if the instrument was held to be valid, that the same was personal to A. H. Patton, but, if held otherwise, then neither the plaintiff nor any one claiming under A. H. Patton had tendered to the defendant the amount mentioned in the option, and that the defendant therefore withdrew the option. He denied any charge of conspiracy to defraud the plaintiff, and denied that she had any interest in the land.

Louis Patton, Walter Patton and Mrs. Sallie Reynolds filed separate answers to the complaint, and, among other things, they admitted that Patton died at Hot Springs, Arkansas, in June, 1924, testate, and named Louis Patton and the plaintiff as beneficiaries. They denied that they had conspired with O'Connor to defraud the plaintiff of any interest in the land, and denied that she was entitled to a half interest therein. With that exception they adopted the complaint of the plaintiff as cross-allegations on their part against their codefendant, O'Connor, and asked that the deeds to him be canceled and that they be declared entitled to take as devisees under the will.

Louis E. Patton filed an intervention in which he denied that A. H. Patton died without issue and testate, and denied that the plaintiff was entitled to an undivided half interest in the lands. He alleged that he was the adopted son of A. H. Patton, and, as such, was entitled to inherit all of his property. He adopted as his own the allegations of the complaint that the deeds to O'Connor were without consideration, and alleged that O'Connor held the same in trust for A. H. Patton. He alleged that the will of A. H. Patton was void, and pleaded in the alternative that, if the court should hold the same valid, he be allowed to take half of the lands as one of the devisees under the will. He also alleged that, if the court should hold that the deeds to O'Connor were valid, the option given by O'Connor to. Patton would inure to his benefit as the heir of Patton. He asked that he be allowed to exercise the option. He alleged that the plaintiff, Ellen E. Patton, was entitled to a dower interest in the lands described, and he prayed that the deeds be canceled and that the dower be assigned her, and that his title be declared and quieted. He made an exhibit to his intervention what purported to be the last will and testament of A. H. Patton, as follows: "This, my last will and testament. I want any money, if any, or land or any other property whatsoever to be divided equally between Walter and Louis Patton, and I want my wife, Ellen, to have $ 1 and Sallie Reynolds $ 2,000."

A separate answer was filed by all the other parties to the intervention of Louis E. Patton, in which they denied that he was the adopted son of A. H. Patton and all other allegations. The defendant, Dan O'Connor, denied that the intervener was entitled to exercise the option executed, by O'Connor to A. H. Patton. The deeds and "option" mentioned in the pleadings were introduced in evidence. Also certain other deeds, by agreement, were introduced in evidence, and the will of A. H. Patton and the order of the probate court showing that the same had been duly probated.

Mrs. Ellen E. Patton, the plaintiff, testified that she was twenty-nine years old. She had been married twice. She was married the first time to Steve L. Williams, and lived with him four years. She was divorced from Williams on March 4, 1924. The ground alleged by Williams for divorce was desertion. She first met A. H. Patton in June, 1923, at which time she was the lawful wife of Williams. She was engaged to Patton in the fall of 1923, before Christmas, while she was the wife of Williams. Patton was sixty-seven years old. After she and Patton were married, they went immediately to Hot Springs and stayed all night there. They then went to Little Rock and stayed four or five days, and then came back to her home, where they stayed all night. Her husband then insisted that she go with him to his home, and she told him that there was no place out there for her to stay. After they came back he went down on the farm and insisted on her going down there, and she said he didn't have any place to live. She didn't know when she married him that the land wasn't in his name. She married him to take care of him. She was asked if she loved Patton, and answered that "she thought enough of him to take care of him."

O'Connor testified concerning the issue here involved substantially as follows: He had lived in Camden about 26 years, and was then engaged in the automobile business. He had known A. H. Patton about as long as he had lived in Camden. They were good friends--visited in each other's homes frequently, and were partners in a land deal. He had his home on a certain tract of land near Camden. The deeds executed to him were dated February 25, 1924. A man by the name of Diffie made them out. Witness was present when they were made out, but would not swear that he was present when they were signed. They were signed in witness' office. Witness was pretty sure he saw Patton sign them, although he would not swear to it. Witness thought he heard the notary take Mr. Patton's acknowledgment. Diffie worked for witness. Witness stated that he was not an expert on handwriting, and couldn't explain how it happened that part of the deed was filled out in pen and ink and part on the typewriter. Witness stated that he didn't know that where the name "Dan O'Connor" was written in the deed it was in witness' handwriting. He didn't know whether it was or not. He didn't believe that any man in the world could tell his own handwriting. Witness didn't think it was in his handwriting. It looked to witness like Diffie's writing. Patton gave witness the deeds on February 25, 1924. Witness didn't give him any property in exchange for it and didn't remember for sure whether he had given him any money. He couldn't recollect. He would not swear whether he did or didn't give Patton $ 1, but he would swear that the deeds were made out completely like they are at the present, when they were given to witness by Patton. Witness could not remember the...